U.S. Bank Trust, N.A. v. Colston
37 N.E.3d 850
Ill. App. Ct.2015Background
- Foreclosure action against Ebbie Colston and Robin Colston; mortgage originally issued by Household Finance Corp. III in 2000 with a flawed property description.
- Property description in 2000 mortgage did not include a house; 2000 appraisal described a house on five acres.
- Defendants later acquired additional property with a house in 2006; 2006 foreclosure complaint listed a different property description.
- Default judgment entered November 8, 2006, then multiple post-judgment and bankruptcy filings occurred, delaying proceedings.
- Plaintiff later sought reformation to include the 2006 property; defendants challenged service and reformation; court denied a 2-1401 petition and upheld foreclosure against defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service complied with 2-206 after nine attempts at the Bartelso address | Service by publication proper after failed in-person service | Defendants were not properly served; jurisdiction lacking | Service by publication proper; jurisdiction preserved |
| Whether reformation to include the 2006 property was proper due to mutual mistake | Description error reflected mutual mistake; reformation appropriate | No mutual mistake; erroneous reform | Reformation proper; mortgage reformed to encompass intended property |
| Whether plaintiff had standing to foreclose given transfers of note and substitution of plaintiff | Note attached to complaint proves ownership; substitution valid | Standing questioned; transfer not properly documented | Plaintiff had standing; substitution valid |
Key Cases Cited
- Bell Federal Savings & Loan Ass’n v. Horton, 59 Ill. App. 3d 923 (Ill. App. 1978) (service and jurisdiction principles in foreclosure actions)
- Korzen v. Parkway Bank & Trust Co., 2013 IL App (1st) 130380 (Ill. App. 2013) (prima facie note ownership proves standing; joinder rules apply)
- GreenPoint Mortgage Funding, Inc. v. Poniewozik, 2014 IL App (1st) 132864 (Ill. App. 2014) (retroactive applicability of 15-1505.6; personal jurisdiction safeguards)
- MB Financial Bank, N.A. v. Ted & Paul, LLC, 2013 IL App (1st) 122077 (Ill. App. 2013) (de novo review of 2-1401 petitions; standard of review)